Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

We will be preparing a series of background lectures on the BP blowout this fall at Tulane Law School, covering basic tech, engineering, science, law and policy issues. They will set a stage for several courses on BP-related issues (environmental, admiralty, energy…), and for research projects for students interested in participating for credit. The lectures may be of interest to you and your students as well, and we will set up a system to “stream” these lectures live to other schools, as you may wish (unfortunately, we cannot do Q and A with you from this classroom). We will also be happy to share ideas for related research topics, if and as you wish.

The program, subject to changes but at this point firm, is reflected in the notice that follows:

THE BP OIL SPILL LECTURE SERIESTULANE LAW SCHOOLFALL, 2010

OPEN TO ALL STUDENTS AND THE GENERAL PUBLIC

The purpose of this series is to provide background on technical, scientific and policy aspects of the BP blowout, including deep water drilling; the blowout; the Gulf of Mexico ecosystem; oil, water and cleanup; containment responses; biological impacts; community impacts; legal issues; and policy implications beyond BP. The lectures (with Q and A following) will take place in room 110 of the law school, 6329 Freret Street, New Orleans, on Monday afternoons, from 4 – 5:15 pm, with exceptions noted. While Tulane law students may participate in this series for academic credit with the satisfactory completion of additional work, it is intended equally for all students and the interested general public. There is, of course, no admission. For further inquiry, please contact Professor Houck at ohouck@tulane.edu (after August 5) or Forest Wootten, 2L, fwootten@tulane.edu.

In several recent cases considering claims that regulatory measures addressing rising sea levels violate the Takings Clause, courts have given significant normative weight to traditional common law rules, even when such rules have long been superseded by statutory provisions. This essay argues that giving analytic precedence to such common law baselines lacks justification and can pose serious obstacles to reasonable measures to adapt to climate change.

Donna R. Christie (Florida State) has posted Of Beaches, Boundaries, and SOBs, published in the Journal of Land Use & Envrionmental Law, Vol. 25, p. 19 (2010). Hot off the press, this article addresses issues raised in Stop the Beach.The abstract:

As sandy beach property has become more scarce and more expensive, the controversies between upland owners and public users of the beach have increased. The public has an absolute right under the public trust doctrine to use the beach below the mean high water line (MHWL) boundary that defines the limits of state lands and littoral ownership, but “knowing” where that ambulating line is at any given time is virtually impossible. This uncertainty exacerbates the tensions that in Florida are leading to clashes between private land owners and the public. Setting a fixed boundary would lead to more certainty and consequently less controversy, but both legal and policy issue arise concerning this approach. In once instance, however – setting a fixed boundary between upland owners and submerged, public trust lands for purposes of government restoration of critically eroding beaches – a fixed boundary with appropriate protections for littoral owners seems to address problems of certainty, as well as legal and policy concerns. The Florida Beach and Shore Preservation Act’s (BSPA) use of this approach has been challenged in the Florida Supreme Court and subsequently in the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection. This article explores public and private interests in beaches and shores, and how the complexities of coastal boundaries contribute to controversies about the use of beaches. The article then looks at how the BSPA attempts to protect both the private and public interests in the coast through, among other provisions, establishing a fixed boundary for restored beaches. Finally, the challenges confronting Florida’s beach management that have arisen as a result of suits in the Florida Supreme Court and now in the U.S. Supreme Court are analyzed.

The big property rights case of the Term has been decided. In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court rejected the judicial takings claim unanimously. The opinion is here: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf. Justice Scalia wrote the majority opinion, but it is not the opinion of the court on all parts. Justices Kennedy and Breyer wrote separately. We've posted about the case previously here, here, here, and here. For a great analysis of what was at stake in the case, re-read Ben Barros' excellent post from last year.

A quick look seems to indicate that the Justices split (4-4, with J. Stevens taking no part) over the issue of whether there can be such a thing as a judicial taking under the right circumstances. Now, to go read the opinions . . . .

The shores of the Great Lakes are a battleground, and their future use is shrouded in uncertainty and controversy. Lakefront owners, armed with their deeds, assert an exclusive right to use their properties at least down to the water's edge. Members of the public, brandishing the venerable but amorphous public trust doctrine, claim a right to walk on even privately owned shores up to the high water mark. Courts to date have diverged widely, in approach and result, when deciding whether, and to what extent, the public has a right to use the Great Lakes shores.This article proposes a uniform framework, grounded in the core principles of the public trust doctrine, for use in each Great Lakes state to ascertain the public right's to use the Great Lakes shores. This framework offers much-needed predictability, yet is flexible enough to allow each state to strike its own balance between public and private interests. The framework employs a principled, two-prong approach. First, it determines the geographic scope of the public trust doctrine applicable to the Great Lakes shores. Reconciling Supreme Court precedents, the framework provides that the geographic scope of the public trust in each state begins at a common starting point informed by the equal footing doctrine, and a state's ability to alter the scope is circumscribed. Second, the framework determines what public uses of the Great Lakes shores are protected by the public trust doctrine. Important, non-traditional public uses that do not unreasonably interfere with the rights of lakefront owners can be protected as well as the traditional uses of navigation, fishing, and commerce. Using as a focal point the controversy regarding the public's right to walk the Great Lakes shores, this article shows how the proposed framework is consistent with existing law in each of the Great Lakes states.

The confluence of both these events also illustrates a move in the direction of the public good over the private good. Despite claims to the contrary, it is rarely the general public that is clamoring for more offshore oil drilling. While many people might like to have lower gasoline prices and reduced dependence on foreign oil, when the public actually sees the trade-offs in price, few make offshore drilling a priority. The political push for offshore drilling comes from the companies themselves, which realize profit through the recovery and processing of this product. Cape Wind also hopes to realize a profit, but it also has significant support from a public that wants to see viable greenhouse-gas-free energy become the norm. The public's clamor was enough to overcome even the most politically well-connected private opposition to Cape Wind, and this signals the breaking of a logjam. More and more approvals will be forthcoming, and this will transform the energy landscape.

A fairly impressive collection of departments and centers among the Florida universities are putting together what should become a very helpful one-stop web site for information on the Gulf spill, hosted (so far, at least) on Florida State's web site. Soon there will be links to specific information on ecological impacts, economic costs, the scope and path of the spill, underwater and surface photos, data sets, and a legal page (I authored the draft of that today), all with links to further information.

The site was officially launched this afternoon and will be growing quickly. If you're interested in following events, I'd recommend bookmarking the page and checking back frequently as the site develops.

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

I know that many of you are interested in the Stop the Beach Renourishment case currently pending before the U.S. Supreme Court (the "judicial takings" case). On April 7, 2010, the Florida State University College of Law hosted our Spring Environmental Forum on this case, and the speakers included lawyers who had argued the case before the Court.

The video of the event is available on our website. I hope that many of you will find this Forum helpful for yourselves and for your classes!

You wouldn't know it from watching TV over the last year, but the Jersey Shore isn't just about Snookie and "The Situation" and their boozy boardwalk-and-nightclub lifestyle as displayed on the appalling MTV reality show. Long Beach Island is an 18-mile barrier island that's mostly low-density residental development. (I even lived on LBI for a short time growing up, and I turned out mostly OK). The focus there is on the beach, and like many places at the water's edge, there is a land use controversy over property rights and the eroding coastline:

LONG BEACH TOWNSHIP, N.J. - The line in the sand is drawn in this New Jersey shore community, where township officials say they'll use "peer pressure" to pit neighbor against neighbor in an effort to persuade 230 oceanfront property owners to let a beach restoration project proceed.

The holdouts are refusing to sign on because they don't want their views of the ocean blocked, and because they fear the government might build a boardwalk or toilets next to their homes. So the township says it hopes neighbors will coax, shame or force holdouts to sign, and is even encouraging them to picket outside the homes of those who won't give in.

"Long Beach Township is talking about anarchy here," said Kenneth Porro, an attorney for the holdouts.

We're all familiar with land use contests over beachfront property, from Lucasto Stop the Beach Renourishment (remember, hypothetical hot dog stands and port-a-potties were much discussed in oral argument last December at the US Supreme Court!) and other cases. But the more typical framework pits the individual landowners against the power of the state. Here, according to the AP story, the government is intentionally pitting neighbor against neighbor.

"We should all be in this together," [one landowner] said. "I've spoken to some very reasonable people who feel the government is taking away their property rights. Nothing could be further from the truth. It's just an easement to put more sand there."

Well, we'll have to see the terms of the proposed easement, but those recalcitrant neighbors are generally correct--when you give someone an easement, you have certainly given away some of your property rights. And many first-year property students can tell you that in New Jersey, the public has a right of access over the "dry sand" though application of the public trust doctrine (remember Matthews v. Bay Head Improvement Ass'n?). The question is whether you need to do that not just for the collective good but to save your house from falling into the sea. Of course there is one other solution not yet on the table:

Long Beach Township officials say eminent domain and its potential costs are a last resort.

Suffice it to say that beachfront property within 100 miles of both NYC and Philadelphia isn't cheap, even if you do have to share the Parkway with Snookie and the gang. So condemning an easement through eminent domain might prove well beyond the township's resources. The holdouts may well be either unreasonable or even acting against their own self-interest. But I do think that the officials should proceed with caution on the campaign to encourage people to call, picket, and otherwise shame their holdout neighbors. We all know how personal and emotional property can be, and how land use controversies can do lasting damage to the social fabric of a community. Intentionally pitting neighbor against neighbor over land can have significant long-term secondary effects.

Matt Festa alerted me to this piece; apparently he loved his time visiting at UGA so much that he still reads the local paper. One of the editors of the Athens Banner-Herald recently visited Seaside and decided maybe New Urbanism isn't so bad after all. The examples we've had of mixed-use development here in Athens have not been very successful - the usual opposition to density and trouble getting appropriate commercial have been bugaboos here. If Athens were ever to get a development that had the quality of Seaside (although how could you ever replicate the sea views?) folks here might better be able to get behind the concept.